Volume 23 Issue 3 Article 4
2001
Criminal Law—Statutes of Limitation on Sexual Assault Crimes:
Criminal Law—Statutes of Limitation on Sexual Assault Crimes:
Has the Availability of DNA Evidence Rendered Them Obsolete Has the Availability of DNA Evidence Rendered Them Obsolete
Amy Dunn
Follow this and additional works at: https://lawrepository.ualr.edu/lawreview Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation
Recommended Citation
Amy Dunn, Criminal Law—Statutes of Limitation on Sexual Assault Crimes: Has the Availability of DNA Evidence Rendered Them Obsolete, 23 U. ARK. LITTLE ROCK L. REV. 839 (2001).
Available at: https://lawrepository.ualr.edu/lawreview/vol23/iss3/4
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CRIMINAL LAW-STATUTES OF LIMITATION ON SEXUAL ASSAULT CRIMES: HAS THE AVAILABILITY OF DNA EVIDENCE RENDERED THEM OBSOLETE?
I. INTRODUCTION
Jeri Elster's assailant broke into her home while she slept.' He bound her, brutally raped her for two hours, and threatened to kill her before slipping away into the night.2 Terrified, Elster contacted police, who for years were unable to solve the crime.3 Seven years later, a deoxyribonucleic acid ("DNA")4 sample taken from a man who had been jailed on an unrelated charge revealed that he was Elster's attacker.' The rapist was never charged, convicted, or sentenced because California's six year statute of limitations had expired the previous year.6
The advent of DNA technology has stimulated public debate as to the viability of statutes of limitation on sexual assault crimes, which in many states range from six to fifteen years." Such debate has arisen in response to the media attention that stories like Jeri Elster's have
I. See Steve Chapman, Rapists Shouldn't Be Able to Run out the Clock, Cm. TRIB., Mar. 12, 2000, at 19, available in 2000 WL 3644726 (reporting on the California legislature's consideration of a bill to abolish the state's statute of limitations when DNA evidence is available). Elster, whose story is recounted in Chapman's article, testified in front of the California legislature in support of the bill. See id. On August 24,2000, California's governor signed an assembly bill allowing the prosecution ofsex offenses within " 0 years from the commission ofthe offense, or one year from the date on which the identity of the suspect is conclusively established by DNA testing, whichever is later." A.B. 1742, 1999-2000 Reg. Sess. (Cal. 2000), available in WESTLAW, 1999 CA A.B. 1742 (SN). This legislation went into effect in January 2001. See CAL. PENAL CODE § 803 (West Supp. 2001).
2. See Chapman, supra note 1, at 19; Erin Hallissy, Bill Designed to Get Tough on Rapists: Assembly Weighs Ending 6-year Limit in DNA Cases, S.F. CHRON., Mar. 14, 2000, at Al; Hanh Kim Quach, DNA Rape Evidence Bill OKd, ORANGE CouNTY REG., Mar. 17, 2000, at B 1, available in 2000 WL 4822165.
3. See Chapman, supra note 1, at 19.
4. DNA is "the chemical that stores coded information on how, when, and where an organism should make the many thousands of different proteins required for life."
Denise K. Casey, Genes, Dreams, andReality: The Promises and Risks of the New Genetics, 83 JUDICATURE 105, 107 (1999).
5. See Chapman, supra note 1, at 19.
6. See id.
7. See, e.g., GA. CODE ANN. § 17-3-1(b) (Michie 1997) (imposing a fifteen year statute of limitations); ME. REV. STAT. ANN. tit. 17-A, § 8(2)(A) (West Supp. 2000) (setting a six year statute of limitations); MASS. GEN. LAWS ANN. ch. 277, § 63 (West Supp. 2000) (observing a fifteen year statute of limitations); TENN. CODE ANN. § 40-2- 101(b)(2) (2000 Supp.) (imposing an eight year statute of limitations); WASH. REv.
CODE ANN. § 9A.04.080(l)(b)(iii) (West 2000) (observing a ten year statute of limitations when the victim reports the crime within one year).
received. One journalist suggests that the "near-perfect certainty" with which DNA evidence can identify the perpetrator of a sexual as- sault--even years after the commission of the crime-has essentially transformed statutes of limitation on sexual offenses into "obsolete law."8 Others express similar sentiments, arguing that if DNA evidence can exonerate innocent prisoners after years in jail, it should "work the other way."
Meanwhile, defense attorneys warn of the dangers of eliminating statutes of limitations where DNA evidence is available, arguing that the presence of DNA proves only that the suspect was present at the scene, not that he committed the crime.'0 Such statutes, it is noted, protect criminal defendants from having to battle charges based on "stale"
evidence." Surprisingly, advocates for rape victims have even been among those expressing opposition to such measures, suggesting that prosecuting sexual assault cases years later might force women who have put the past behind them to relive their trauma once again.'2
Several states have recently responded to public pressures by extending or modifying their statutes of limitation for sexual assault crimes." Prosecuting attorneys in some states have even resorted to filing "John Doe" indictments, identifying the unknown assailants by their DNA profiles to halt the running of the applicable limitations periods.4 Whether or not these measures will survive judicial scrutiny
8. Chapman, supra note 1, at 19.
9. Kim Kozlowski, Rape Victim: Change Laws So Criminals Can'tEludeArrest, DET.
NEWS, May 30, 2000, at 6.
10. See id.
11. See United States v. Lovasco, 431 U.S. 783, 789 (1977); Tyler T. Ochoa &
Andrew J. Wistrich, The Puzzling Purposes of Statutes ofLimitation, 28 PAC. L.J. 453,458 (1997). "Stale" evidence generally refers to evidence that has become less reliable due to deterioration. See Ochoa & Wistrich, supra, at 458.
12. See Francie Latour, Revisited Rapes, Reawakened Trauma: DNA Testing Worries Victims' Advocates, BOSTON GLOBE, May 28, 2000, at B 1.
13. See, e.g., NEv. REv. STAT. ANN. § 171.083(1) (Michie Supp. 1999) (eliminating Nevada's statute of limitations on sexual assault in cases where the victim reports the attack to a law enforcement officer within a prescribed time).
14. See David Doege, Novel Warrant IDs Suspect Only by DNA: Databank Evidence Used to Charge 'John Doe' in Rape, MILWAUKEE J. SENTINEL, Sept. 2, 1999, at 1.
Authorities in Wisconsin issued one of the first such warrants on September 1, 1999, identifying the assailant as "'John Doe, unknown male' with matching DNA 'at genetic locations DIS7, D2S44, D51 10, D10S28 and D17S79.-' Id. The first "John Doe"
warrant issued on an unknown rapist reportedly hailed from McPherson County, Kansas, in 1991. See Michael Luo, Unnamed Man Indicted by DNA, NEWSDAY, Aug. 9, 2000, at A3, available in 2000 WL 10027824; Kelly Kagamas Tomkies, When the Case
STATUTES OF LIMITATION AND DNA
remains to be seen, as none have yet been challenged at the appellate level in the American court system."
Has the advent of DNA technology indeed rendered the policy justifications favoring statutes of limitation in sexual assault cases obsolete? This note addresses this question by first reviewing the traditional policies that favor criminal statutes of limitation. Next, this note discusses DNA evidence and its use in the context of sexual assault crimes. In addition, it examines how various state legislatures and law enforcement officials have responded to concerns that criminal statutes of limitation are unfair in light of the accuracy and longevity of DNA evidence. Finally, this note submits that the availability of DNA evidence has significant implications for the policies behind statutes of
limitations on sexual assault crimes and proposes suggestions'6 for a statutory solution that would maintain some protections for criminal defendants and yet minimize the injustice created by the statutes that have allowed perpetrators-like the one who raped Jeri Elster-to walk free.
Is Never Closed (visited Mar. 1, 2001) <http://www.office.com/search/office.com/
article?ARTICLE=1 4735>.
15. See Eric Slater, Positive ID, SEATrLE TIMEs, Feb. 20, 2000, at A3. However, Sacramento police recently arrested the first suspect to have been identified in his arrest warrant only by his DNA profile. See generally Erin Hallissy & Charlie Goodyear, Databank Match Brings Arrest on DNA Warrant: First Such Case Raises Civil Liberty Issues, S.F. CHRON., Oct. 25,2000, at A3, available in 2000 WL 6494988. California Superior Court Judge Tani Cantil-Sakauye recently upheld the legality of the warrant in a Feburary 23, 2001, hearing. See Judge Upholds Arrest Warrant Based on Unknown Suspect's DNA, Ctn. TRIB., Feb. 25, 2001, at 7, available in 2001 WL 4045445.
16. These suggestions do not apply to sexual assault crimes involving minor victims, as such offenses raise special policy concerns that are beyond the scope ofthis note.
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II.
BACKGROUNDSexual assault" is a painfully traumatic experience that imposes
upon its victims feelings of fear, self-blame, anxiety, and devastation.8 Women are not the only targets of sexual assault crimes-men9 and, tragically, children," become victims as well. The Bureau of Justice Statistics recently reported a 13.3% increase in the overall number of sexual assaults (including attempts) perpetrated in the United States in 1999,21 indicating that this particular crime remains a prevalent area of national concern.'Sexual assault, like most other crimes,2 3 is subject to statutes of limitations in many states.24 Statutes of limitation are deeply embedded
17. Throughout this note, "sexual assault" refers primarily to "rape" simply because most DNA profiling cases involve rape. See George W. Clarke & Catherine Stephenson, Commentaryto EDWARD CONNORS ETAL., CONVICTED BY JURIES, EXONERATED
BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL xxiii, xxiii (1996). Arkansas defines rape as:
[S]exual intercourse or deviate sexual activity with another person: (1) By forcible compulsion; or (2) Not his spouse, who is a patient or resident of a hospital, nursing home, human development center, or other similar facility, and who is incapable ofconsent because he is mentally defective or mentally incapacitated; or (3) Who is incapable of consent because he is physically helpless; or (4) Who is less than fourteen (14) years of age.., or (5) Not his spouse who is less than sixteen (16) years of age and who is incapable of consent because he is mentally defective or mentally incapacitated.
ARK. CODE ANN. § 5-14-103(a) (Michie Repl. 1997).
18. See generally Arthur H. Garrison, Rape Trauma Syndrome: A Review of a Behavioral Science Theory and Its Admissibility in Criminal Trials, 23 AM. J. TRIAL ADVOC.
591 (2000).
19. See CALLIE MARIE RENNISON, U.S. DEP'T OF JUSTICE, NATIONAL CRIME VICTIMIZATION SURVEY 8 (2000), available at <http://www.ojp.usdoj.gov/bjs/pub/
pdf/cv99.pdt> (visited Mar. 1, 2001). The Bureau of Justice Statistics reported that 39,340 men over the age of 12 were raped or otherwise sexually assaulted in the United States during 1999. See id
20. See generally Jane Brady, Drop in Crime Rate Bypasses Child Victims, CRIM. JUST., Summer 2000, at 10.
21. See RENNISON, supra note 19, at 3.
22. See Rape Abuse & Incest National Network, A National Shame (visited Mar. I, 2001) <http://www.rainn.org/stats.html>.
23. Almost all statutes of limitation exclude capital crimes and noncapital murder, allowing prosecution for these offenses at any time. See Alan L. Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 WM. & MARY L. REV.
199, 251-52 (1995).
24. See supra note 7. Nevertheless, a number of states have eliminated their limitation periods on sexual assault crimes. See Jonathan W. Diehl, Note, Drafting a Fair DNA Exception to the Statute ofLimitations in Sexual Assault Cases, 39 JURIMETRICS J.
STATUTES OF LIMITATION AND DNA
in the American judicial system, tracing their ancestral roots to the real property laws of ancient Greece.
2In the criminal context, these periods of limitation serve to define the time frame within which the State must commence an action for a specified offense.' Criminal statutes of limitation are not mandatory; state legislatures may therefore change or eliminate these statutes at their discretion."'
Enforcing limitation periods inevitably creates a tension between society's need to punish criminal behavior and the necessity of protecting defendants from the prejudice created by the passage of time.
2'Because courts are mindful of the potential prejudice created for the defendant who has to battle charges based on acts in the distant past, criminal statutes of limitation are generally construed liberally, "in favor of repose."
29However, the relatively recent appearance of DNA technology on the judicial landscape" has upset this balance, leading many to question the justifications for continuing to limit the time within which the State can prosecute criminal defendants for sexual
assault crimes.3A viable solution to the issues that have begun to arise as a result of growing tensions between new technology and old laws necessitates an understanding of the traditional policies favoring criminal statutes of limitation as well as the nature of DNA evidence itself. This section begins by identifying the traditional rationales behind criminal statutes of limitation. Next, it provides an overview of DNA evidence and its importance in the prosecution of sexual assault crimes. This section then concludes by discussing recent strategies that prosecutors and legislatures have begun to employ in response to concerns about the
431,431 n.1 (1999).
25. See Ochoa & Wistrich, supra note 11, at 454 & nn.7-8.
26. See MODEL PENAL CODE AND COMMETrARiEs § 1.06 explanatory note at 85 (1985).
27. See Adlestein, supra note 23, at 250-51.
28. See J. Anthony Chavez, Statutes ofLimitations and the Right to a Fair Trial: When is a Crime Complete?, CRIM. JUST., Summer 1995, at 2, 2.
29. Toussie v. United States, 397 U.S. 112, 114-15 (1970).
30. The first case in which prosecutors used DNA evidence to convict a criminal defendant was in 1988. See Sally E. Renskers, Comment, Trial by Certainty: Implications of Genetic "DNA Fingerprints ", 39 EMORY L.J. 309, 314 & n.42 (1990) (discussing State v. Andrews, No. 87-1595 (Ninth Jud. Cir. Ct., Orange County, Fla. Div. 15, Nov. 6,
1987), aff'd, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988)).
31. See generally Chapman, supra note 1, at 19.
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843perceived unfairness of statutes of limitation on sexual assault prosecutions.
A. Traditional Policies Favoring Criminal Statutes of Limitation
One of the primary policy justifications for imposing time limits on the prosecution of crimes is the desirability of prosecuting a criminal defendant using relatively fresh evidence." Limitation periods inherently recognize that the reliability of certain kinds of evidence diminish over time: "[M]emories fade, witnesses die or leave the area, and physical evidence becomes more difficult to obtain, identify, or preserve."
33According to the drafters of the Model Penal Code, the imposition of statutes of limitation on certain crimes reduces the probability of errors in conviction.
34These statutes thereby protect all potential defendants, especially those who are innocent."
Protecting criminal defendants from the threat of an unfair trial by encouraging law enforcement officials to investigate and prosecute crimes in a timely manner has often been cited as an important policy justifying criminal statutes of limitation.
36When the State is able to delay prosecution for prolonged periods of time, criminal defendants are penalized for the State's negligence.
37As the United States Supreme
32. See MODEL PENAL CODE AND COMMENTARIES § 1.06 cmt. 1 (1985). See also United States v. Ewell, 383 U.S. 116, 122 (1966) (recognizing that "statute[s] of limitation [are] usually considered the primary guarantee against bringing overly stale criminal charges"). This particular policy justification has held less importance in cases of childhood sexual abuse. See Gary M. Emsdorff& Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases ofMemoryRepression, 84 J. CRIM. L. & CRIMINOLOGY 129, 154 (1993) (cautioning against the use ofpreviously repressed memories to prosecute defendants suspected ofsexually abusing children years after the alleged abuse). In 1993, seven states had statutes that permitted prosecution of childhood sexual abuse based on previously repressed memories. See id. at 153 n.120. Ernsdorff and Loftus note that the reliability of repressed memories is questionable at best. See id. at 154.
33. MODEL PENAL CODE AND CoMmErrARmEs § 1.06 cmt. 1 (1985).
34. See id.
35. See Ochoa & Wistrich, supra note 11, at 462 (observing that "[elvery person, whether innocent or not, is a potential defendant").
36. See, e.g., Adlestein, supra note 23, at 262. See also Toussie v. United States, 397 U.S. 112, 115 (1970) (remarking that "[s]uch a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity").
37. See Doggett v. United States, 505 U.S. 647,657 (1992). It should be observed, however, that criminal defendants have access to other protections besides statutes of limitation; the Sixth Amendment speedy trial guarantee, for example, offers some
STATUTES OF LIMITATION AND DNA
Court noted in Doggett v. United States,3" law enforcement officials may be tempted to put off prosecuting those cases that are low on the priority list, thereby creating more prejudice for some criminal defendants than others.39 Overburdened by limitations on personnel and financial resources, government officials may not be persuaded into prompt action by public pressure alone.' Statutes of limitation thus, according
to some, serve to assure vigilance on the State's part.
4'
Another policy justification typically cited in favor of time limits on prosecuting crimes is the idea that the need for punishment wanes as time passes.
42Various legal scholars note that society's instinct for retribution may, in some instances, fade,
43giving way to mercy for the defendant facing charges for forgotten acts." Theoretically, those who have committed criminal acts in the past and have not since engaged in criminal behavior have "self-rehabilitated," making punishment long after their wrongs moot.
45Those who do not adapt to society's rules and who continue to engage in crime will face prosecution for their more recent acts.
46Some suggest that statutes of limitation serve to provide "security and stability to human affairs" by promoting repose.
47Although
protection against unwarranted delays for the defendant who has been arrested, formally charged, or indicted. See U.S. CONST. amend. VI; United States v. Marion, 404 U.S. 307, 320 (1971).
38. 505 U.S. 647 (1992).
39. See Doggett, 505 U.S. at 657.
40. See Note, The Statute of Limitations in Criminal Law: A Penetrable Barrier to Prosecution, 102 U. PA. L. REV. 630, 633 (1954).
41. See id.
42. See MODEL PENAL CODE AND CoMMENTARES
§
1.06 cmt. 1 (1985); Adlestein, supra note 23, at 265.43. This view has been criticized-one scholar notes that the "retributive impulse"
simply does not fade in cases "involving homicide or lasting physical or psychological damage." Adlestein, supra note 23, at 265-66.
44. See MODEL PENAL CODE AND COMMENTARIES § 1.06 cmt. 1 (1985); Adlestein, supra note 23, at 265.
45. See Note, supra note 40, at 634.
46. See MODEL PENAL CODE AND COMMENTAIES § 1.06 cmt. 1 (1985); Adlestein, supra note 23, at 265.
47. MODEL PENAL CODE AND COMMENTARES § 1.06 cmt. 1 (1985) (quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879)). Authors Ochoa and Wistrich explain that
"repose" embodies four intertwined concepts: (1) permitting "peace of mind;" (2) maintaining "settled expectations;" (3) "reduc[ing] uncertainty about the future;" and (4) "reduc[ing] the cost of measures designed to guard against the risk of untimely claims." Ochoa & Wistrich, supra note 11, at 460. Here, "repose" includes the first three of these four ideas; this note separately discusses the costs associated with
2001]
845wrongdoers will be among those who rest easy knowing they are beyond the reach of justice, those who are innocent or unsure will also be free from the threat of erroneous prosecution.4 Witnesses,49 and arguably victims," can maintain the peace of mind that they have regained in the years since the crime. Law enforcement officials can also close old cases and focus attention and resources on newer cases.
Other policy rationales typically focus on the costs associated with having no time limits for prosecuting criminal offenders. For instance, threats of blackmail may loom indefinitely for the actor whose crimes are known to others.52 Such activity has the potential to lead to additional prosecutions,5 3 thus tying up more law enforcement and judicial resources.
Because various types of evidence deteriorate over time,' litigation becomes more expensive than it would be if the prosecution were based on more recent events." Costs also increase as it becomes more difficult to find witnesses and to reconstruct the events surrounding the crime.' Additionally, society bears the costs of continuing unproductive investigations, punishing wrongdoers who are caught years later, and losing productive members of society when wrongdoers have success- fully rehabilitated."
The policies that have typically served to justify limitations on criminal prosecutions are complex and intertwined. They reflect a balance between the interests in protecting the criminal defendant from potential prejudice and in attaining efficiency and resolution. Regard- less of the tools that prosecutors use to bring criminal defendants to justice, these concems-always remain in the backdrop. Nevertheless, the availability of DNA evidence has introduced some new twists to the balance of interests.
"untimely claims." See infra notes 52-57 and accompanying text.
48. See Ochoa & Wistrich, supra note 11, at 461.
49. See id. at 462.
50. See Latour, supra note 12, at BI.
51. See Diehl, supra note 24, at 435.
52. See MODEL PENAL CODE AND COMMENTARIES § 1.06 cmt. 1 (1985); Adlestein, supra note 23, at 265.
53. See Diehl, supra note 24, at 436.
54. See infra Part II.B.2.b.
55. See Ochoa & Wistrich, supra note 11, at 480.
56. See id.
57. See Adlestein, supra note 23, at 266.
STATUTES OF LIMITATION AND DNA
B. DNA Evidence: An Overview of Its Importance in Prosecuting
Sexual Assault Crimes1. Uses of DNA Evidence
Touted by one commentator as "the greatest single breakthrough in the fight against crime since fingerprints,"
8forensic DNA analysis has, in recent years, gained recognition as a powerful prosecutorial tool.
59Widespread acceptance of DNA technology by both scientific' and legal communities
6' has led to the use of DNA fingerprinting to identify and prosecute violent offenders and to exonerate those who are innocent.
2Before the advent of DNA technology, law enforcement officials often relied on forensic analysis of gene products-such as ABO blood groups-rather than the genes themselves to identify criminal offenders.
63Its uses have not been limited to identifying criminals; DNA fingerprinting has proved invaluable in paternity, adoption, and immigration cases." It has also aided in the identification of missing persons,"' as well as wartime and catastrophe victims." Even
DNA evidence collected from non-human sources, such as dogs, cats,viruses, and plants, has made its way into courtrooms as trial evidence."
58. Renskers, supra note 30, at 309 (quoting DNA Testing on the Increase, 131 SoLIC.
J. 1596 (1987)). Dr. Alec Jeffireys, University of Leicester genetics professor, coined the term "DNA fingerprinting," analogizing the unique nature of DNA profiles to that of fingerprints. See id. at 309 n.3.
59. See Cardozo Law Innocence Project (last modified Oct. 13, 2000)
<http://www.cardozo.yu.edu/innocence_project/>.
60. See Renskers, supra note 30, at 310.
61. See Joseph T. Walsh, Keeping the Gate: The Evolving Role of the Judiciary in Admitting Scientific Evidence, 83 JUDICATURE 140, 142-43 (1999).
62. See Walter F. Rowe, Commentary to EDWARD CONNORS ET AL., CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL xv, xv (1996).
63. See NATIONAL RESEARCH COUNCIL, COMMITrEE ON DNA FORENSIC SCIENCE: AN UPDATE, THE EVALUATION OF FORENSIC DNA EVIDENCE 47 (1996) [hereinafter NRC].
64. See Casey, supra note 4, at 109.
65. See Michelle Hibbert, DNA Databanks: Law Enforcement's Greatest Surveillance Tool?, 34 WAKE FOREST L. REV. 767, 787 (1999).
66. See Casey, supra note 4, at 109.
67. See id. at 109-10. In 1995, for example, an Arizona jury convicted a murderer based on DNA evidence obtained from the pods of a palo verde tree that investigators found in the bed of his pickup truck and at the murder scene. See State v. Bogan, 905 P.2d 515 (Ariz. Ct. App. 1995).
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Although the human genetic make-up differs from person to person
by a mere one to two tenths of one percent,68the probability of two people sharing the same DNA profile is as minute as one in thirty billion.
69Practically all body fluids and tissues contain DNA,
0meaning that semen, blood, hair, skin cells, and saliva can all yield viable DNA profiles.' Sexual assault crimes, in particular, yield rich DNA evidence, often from semen that the perpetrator has deposited.'
a.
DNA ProfilingAfter investigators collect DNA evidence from a crime scene, laboratory specialists isolate the DNA molecule from the sample and split it into fragments using enzymes." These fragments, known as hypervariable minisatellite regions,
74are placed on a semisolid gel, to which an electrical current is applied.
5The fragments "migrate" across the gel, the smaller fragments traveling greater distances than the larger ones.
6The DNA fragments are then transferred onto a nylon mem-
68. See Casey, supra note 4, at 107.
69. See Renskers, supra note 30, at 313. There is one notable exception to this statistic-identical twins share the same DNA profile. See Yale H. Yee, Note, Criminal DNA Data Banks: Revolution for Law Enforcement or Threat to Individual Privacy?, 22 AM.
J. CRIM. L. 461, 463 (1995).
70. See Renskers, supra note 30, at 311. Although blood itself contains DNA, the mature red blood cells do not. See Casey, supra note 4, at 107.
71. See Renskers, supra note 30, at 311-12.
72. See Clarke & Stephenson, supra note 17, at xxiii. Clarke and Stephenson note that the DNA evidence used to exonerate 26 of the 28 inmates discussed in the Department of Justice case study derived from analysis of the sperm contained in the semen samples collected from the victims. See id.
73. See Renskers, supra note 30, at 312. For a more detailed, scientific explanation of this process, see NRC, supra note 63, at 15-18. Described in the book as "VNTR typing," this method closely describes the second phase of a newer technique called Polymerase Chain Reaction using Short Tandem Repeat markers ("PCR-STR"), in which the DNA molecules in a given sample are replicated before they are split into fragments. See Christopher H. Asplen, From Crime Scene to Courtroom: Integrating DNA Technology into the Criminal Justice System, 83 JUDICATURE 144, 148 (1999); NRC, supra note 63, at 70. PCR-STR enables forensic laboratory specialists to analyze trace quantities of DNA evidence that would have been too small for scientists to analyze using older methods. See NRC, supra note 63, at 23. For a more in-depth discussion of PCR-based methods, see id at 69-73.
74. See Renskers, supra note 30, at 312.
75. SeeNRC, supra note 63, at 15-16.
76. See id. at 16.
STATUTES OF LIMITATION AND DNA
brane, and radioactive probes are applied." These probes, which consist of radioactive markers that attach to the fragments, produce the telltale bands of a DNA profile when the membrane is applied to photographic
film.78In cases where there is a known suspect, investigators compare the
DNA profile derived from crime scene evidence to the suspect's profileto determine if there is a match.
7 If the two sample DNA profiles donot match, officials can rule out the suspect as the perpetrator."' When the samples do match, investigators face three possible explanations for the results: (1) the two samples came from the same individual;" (2) an error occurred either during the collection of the DNA sample or during its analysis in the laboratory;
2or (3) the samples came from two different persons with the same DNA profile.'
3It is this last probability that scientists statistically compute to determine the probability that the suspect was the person who left the DNA at the scene." Because such a probability is "staggeringly small," asserts one commentator,
"individuals may be positively identified or excluded from suspicion on the basis of their DNA."
85b. DNA Databases
Law enforcement officials periodically face crime investigations where there is no known suspect.' For instance, approximately thirty
77. See id.
78. See id.
79. See Yee, supra note 69, at 464.
80. See NRC, supra note 63, at 51. If such an exclusion takes place prior to litigation, the suspect almost never goes to trial. See id.
81. SeeNRC, supra note 63, at 10.
82. See id. Such errors, notes one commentator, lead to inconclusive results, rather than to false matches. See Renskers, supra note 30, at 313. However, if samples are accidentally (or purposely) exchanged, a false match could occur if the sample tested did not actually come from the crime in question. See NRC, supra note 63, at 81-82.
Overall, errors are more likely to lead to false exclusions rather than false matches. See id. at 5 1. See also discussion infra Part II.B.2.a.
83. SeeNRC,supra note 63, at 10.
84. See id.
85. Renskers, supra note 30, at 313-14. See also supra note 69 and accompanying text.
86. See, e.g., Jeff Jones, Indictment IDs Suspect by His DNA, ALBUQUERQUE J., Apr.
20, 2000, at AI, available in 2000 WL 18944892 (reporting on the investigation and indictment of an unknown serial rapist in New Mexico). One journalist reported that
2001] 849
percent of sexual assault victims do not know their attackers." In such cases, investigators are left without individual suspect profiles against which to compare DNA evidence collected from the victim or the crime scene.n
In recent years, the Federal Bureau of Investigation, with the cooperation of a number of states, has established the Combined DNA Index System ("CODIS")" to assist law enforcement officials in identifying suspects in cases where those offenders are unknown."
Investigators using this system can compare DNA profiles generated from crime scene evidence with profiles stored on local or national DNA databases to obtain a match, which they then use to identify and arrest possible suspects.9 The "cold hits"' that result from this matching process identify approximately one offender for every 1,000 samples contained in the CODIS system.3
more than 50%1 of the 93,000 rapes that took place in 1998 remained unsolved. See Richard Willing, Mystery Suspects Charged Through DNA, USA TODAY, Apr. 3, 2000, at 3A.
87. See RENNIsON, supra note 19, at 8. Because unidentified assailants are harder to find, the applicable statute of limitations for rape is more likely to expire in these
cases. See Diehl, supra note 24, at 439.
88. SeeNRC, supranote 63, at 133-34.
89. This identification system, which utilizes computer software and uniform analysis methods, has yet to realize its full potential. See Asplen, supra note 73, at 146;
Hibbert, supra note 65, at 772 n. 14. Not all states have access to CODIS, and those that do are not entirely consistent with regard to the classifications of criminals they include in their databanks or the types of criminal investigations warranting database searches.
See Hibbert, supra note 65, at 773, 795. Nevertheless, all 50 states have enacted laws establishing DNA databanks, and all require certain classes ofoffenders to submit DNA samples for analysis and inclusion in those databases. See Asplen, supra note 73, at 147; Hibbert, supra note 65, at 767.
90. See Asplen, supra note 73, at 147.
91. See NATIONAL COMMISSION ON THE FUTURE OF DNA EVIDENCE, NATIONAL
INSTITUTE OF JUSTICE, WHAT EvERY LAW ENFORCEMENT OFFICER SHOULD KNOW ABOUT DNA EVIDENCE 5 (1999), available at <http://www.ojp.usdoj.gov/nij/pubs- sum/000614.htm> (visited Mar. 1, 2001) [hereinafter NCFDE].
92. Rodney Bowers, DNA Links Suspect to Benton Burglary, ARK. DEMOCRAT GAZETTE, Apr. 8, 2000, at B 1 (describing a "cold hit" as the result of "matching a DNA sample to a previously unknown suspect").
93. See Asplen, supra note 73, at 147. CODIS has also proved useful in linking unsolved crimes to each other, including those committed in more than one state. See Hibbert, supra note 65, at 779-80.
STATUTES OF LIMITATION AND DNA
c. Defendants and DNA
In addition to its widespread use by law enforcement officials and prosecutors, DNA technology has become increasingly useful for defendants and their attorneys." As many as one-third of primary suspects in rape cases are excluded before those cases ever reach the courtroom, thus quickly eliminating erroneous leads." Those who are indeed guilty may choose to plead and thereby avoid jury sentences.'
One of the more striking defense uses of DNA profile comparison has been its recent employment in establishing the innocence of convicted offenders.' A number of individuals convicted of violent crimes before the widespread acceptance of DNA technology in United States courtrooms have sought reevaluation of the evidence collected in their cases, resulting in their exoneration and release from prison.9 To date, at least seventy-two inmates-eight of whom were on death row-have been exonerated because post-conviction DNA profile comparisons revealed that their DNA profiles did not match the crime scene DNA evidence.W
94. See Renskers, supra note 30, at 310.
95. See NRC, supra note 63, at 11. Elimination of suspects before trial also benefits investigators, who are able to minimize wasted efforts. See id
96. See Renskers, supra note 30, at 310.
97. See Rowe, supra note 62, at xv.
98. See id.
99. See Morning Edition (National Public Radio broadcast, Aug. 29, 2000) (transcript available at NPR Online) (visited Mar. 1, 2001)
<http://www.npr.org/inside/transcripts/>. Those released had served, on average, seven years for crimes they did not commit. See Janet Reno, Message from the Attorney General, EDWARD CONNORS ET AL., CONVICTED BY JURIEs, EXONERATED BY SCIENCE: CASE
STuDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL iii, iii
(1996). For more information about the use of DNA to exonerate persons who have been wrongly convicted, see Cardozo Law Innocence Project (last modified Oct. 13, 2000) <http://www.cardozo. yu.edu/innocence_project/>. The Innocence Project-a pro bono legal assistance program at the Benjamin N. Cardozo School of Law--has been the driving force behind overturning erroneous convictions through DNA analysis.
See id
2001]
2. The Accuracy and Longevity of DNA Evidence
a. Accuracy
The widespread use of DNA technology in the criminal justice system to both inculpate and exculpate suspected offenders has occurred primarily because of the accuracy with which it can identify specific individuals."° According to the National Research Council, "[t]he technology for DNA profiling and the methods for estimating frequen- cies and related statistics have progressed to the point where the reliability and validity of properly collected and analyzed DNA data should not be in doubt."'' The statistical odds of two random people sharing the same genetic profile is so small, according to one commen- tator, that positive identification is now possible.0 2 DNA analysis is not infallible, however, as it is subject to human error at each stage, from the field to the laboratory."l 3
Errors in sample collection and handling can occur when investiga- tors mislabel items of evidence or do not follow strict chain of custody protocols.'" Such mistakes may mean that the laboratory receiving the evidence will test the wrong sample, yielding incorrect results and perhaps even false matches." Collection and handling errors can, according to the National Research Council, be prevented through proper training, strict observation of handling procedures, "second reading" reviews,""° and sample retesting."7
Contamination of samples can also lead to erroneous results."'3 Evidence from the crime scene may be mixed with nonhuman materials,
100. See Yee, supra note 69, at 480.
101. NRC, supra note 63, at 2.
102. See Renskers, supra note 30, at 313-14; note 69 and accompanying text.
103. See NRC, supra note 63, at 80.
104. See id. at 80-81.
105. See id. at 80.
106. In a "second reading," a second person reviews the results and analyzes them for potential errors. See id. at 81. Forensic laboratories commonly follow this practice, which the Technical Working Group on DNA Analysis Methods guidelines require.
See id.
107. See id. The NRC observes that sample mishandling is more readily detected because of the "discriminating power" of DNA analysis. See id. Such errors were not as likely to be caught when the evidence was subjected to blood-group or protein- marker testing. See id.
108. See id. at 82-83. Contamination occurs when the sample is mixed with a foreign material or substance. See id. at 82.
STATUTES OF LIMITATION AND DNA
such as gasoline, grit, or microorganisms, which could cause a DNA test to fail.'° Other human biological evidence may act as a source of contamination, either when an investigator or laboratory specialist inadvertently introduces her own genetic material into the sample or when the sample itself is mixed during the commission of the crime."o Contamination by genetic material from other humans creates more concern than non-human contamination, simply because it can lead to DNA typing errors."' Laboratory technicians can detect false results stemming from sample contamination by using background control samples."' As with handling errors, false results due to contamination can be minimized through rigorous adherence to handling guidelines and procedures."'
Other types of mistakes include laboratory sample analysis errors,"4
"carryover contamination," "
- and faulty equipment or techniques.""
Although any mistake is cause for concern, many are, according to the National Research Council, of no consequence."' Painstaking care in the collection, handling, laboratory analysis, and case review of DNA evidence can reduce most errors."8 Commentators n6te that the primary
109. See NRC, supra note 63, at 83. This type of contamination does not result in DNA typing errors, meaning that false matches will not occur. See id.
I 10. See id. at 83-84. The classic example of a "mixed" sample is the vaginal swab taken from a rape victim, which contains both semen and vaginal secretions. See id. at 84. Similarly, a sample may be mixed if there are multiple assailants or if the victim engaged in consensual sexual activity prior to the attack. See, e.g., Cynthia Bryant, When One Man's DNA Is Another Man's Exonerating Evidence: Compelling Consensual Sexual Partners of Rape Victims to Provide DNA Samples to Postconviction Petitioners, 33 COLUM. J.L. & Soc. PROBS. 113, 115 (2000); Hibbert, supra note 65, at 803.
111. See NRC, supra note 63, at 83.
112. See id. Background control sampling is the procedure by which investigators collect biological material adjacent to the primary sample and compare the two samples to determine if contamination has occurred. See id.
113. See id
114. See Hibbert, supra note 65, at 803. One genetics expert estimates that "'clinical laboratory errors occur in all areas at rates estimated at between [one] percent and [five]
percent."' Id. (quoting Eric Lander, DNA Fingerprinting: Science, Law, and the Ultimate Identifier, in THE CODE OF CODES 191, 195 (Leroy Hood & Daniel J. Kevles eds., 1992)) (alterations in original).
115. NRC, supra note 63, at 84. Carryover contamination occurs when the substance used to amplify the DNA is introduced before the DNA sample is completely isolated. See id. This results in the amplification of not only the target sample but also the contaminant. See id
116. See id. at 82.
117. See id. at 80.
118. See id. at 87.
2001] 853
way to detect any remaining errors and avoid their negative conse- quences is to provide for sample retesting."9 This requires that laboratory specialists divide evidence into multiple samples and separately retain them for later analysis.20 Retesting allows an accused individual to directly challenge initial matching results, virtually eliminating the need to take into consideration the possibility that errors have led to a false match.121
b. Longevity
Scholars agree that preserved DNA evidence is not necessarily subject to the deterioration that other types of evidence tend to undergo." Even DNA that has not been preserved can yield viable genetic information years, even decades later.23 Chris Asplen, Executive Director of the National Commission on the Future of DNA Evidence,24 discussed in a recent article the potential impact of DNA evidence on statutes of limitation, observing that DNA technology raises unique issues because DNA samples last beyond the applicable statutes limiting the time periods within which criminal charges or appeals must be brought."z The DNA of living persons exhibits even more striking longevity---one commentator remarked that "it is simple to change
119. See id.; Diehl, supra note 24, at 440.
120. See NRC, supra note 63, at 87. The NRC recommends that an independent laboratory retest the sample. See id.
121. See id.
122. See Rowe, supra note 62, at xv (noting that DNA molecules are more stable than the polymorphic proteins formerly used to link biological evidence to suspected offenders); Asplen, supra note 73, at 146 (stating that "DNA samples last indefinitely");
Hibbert, supra note 65, at 791 (asserting that "[glenomically-derived trait information"
can be superior to descriptions or other information assembled from eyewitness accounts). However, DNA evidence is subject to degradation if left exposed to the elements. See NCFDE, supra note 91, at 2. In the case of DNA evidence collected from sexual assault victims, such collection must take place within 72 hours ofthe rape to be of forensic value. See David Doege, As DNA's Role Rises, MILWAUKEE J. SENTINEL, Oct. 1, 2000, at 15L, available in 2000 WL 26087180.
123. See NCFDE, supra note 91, at 2.
124. See Asplen, supra note 73, at 144. Attorney General Janet Reno established the National Commission on the Future of DNA Evidence in 1997 to assist the Department of Justice in maximizing the effective use of DNA technology in the criminal justice system. See id. at 145. For more information about the Commission, see National Commission on the Future of DNA Evidence (last modified Dec. 7, 2000)
<http://www.ojp.usdoj.gov/ nij/dna/welcome.html>.
125. See Asplen, supra note 73, at 146.
STATUTES OF LIMITATION AND DNA
one's physical appearance" but that "it is not yet possible to alter one's genome."'26 Indeed, DNA remains "invariant throughout... life."' 7
c. Other Issues
Interestingly, the accuracy of DNA evidence and its potential longevity have, in addition to solving some problems, created some new ones. As one scholar has remarked, "genetic technology has in many instances outpaced any ethical or governmental regulations on the technology."'28 This becomes evident in light of the potential of DNA technology to reveal tremendous amounts of information about human physical and mental characteristics."z Already, scientists are research- ing the potential of gene therapy to diagnose, treat, and ultimately prevent various genetic conditions such as cancer, cystic fibrosis, hemophilia, and rheumatoid arthritis.'30 Yet many worry that employers and insurance companies who gain access to DNA databases might be able to use that information for discriminatory purposes.' Others are fearful that this same information may be used to stigmatize certain racial groups or classes of offenders by revealing genetic characteristics or predispositions to which those groups are subject.' At present, the DNA analysis methods that forensic laboratories use scan only specific portions of the DNA molecule, portions that do not reveal such information.' Furthermore, the United States Supreme Court has held on several occasions that criminal offenders who are incarcerated or on probation simply do not share the same degree of privacy that law- abiding citizens enjoy,3 4 suggesting that privacy issues are more of a concern for the public at large, rather than for violent offenders.
126. Hibbert, supra note 65, at 790-91.
127. Yee, supra note 69, at 464.
128. Hibbert, supra note 65, at 818.
129. See id. at 790.
130. See Casey, supra note 4, at 109.
131. See generally Jennifer M. Jendusa, Comment, Pandora's Box Exposed:
Untangling the Web ofthe Double Helix in Light ofInsurance and Managed Care, 49 DEPAUL L. REv. 161 (1999).
132. See Hibbert, supra note 65, at 819.
133. See Casey, supra note 4, at 110.
134. See Hibbert, supra note 65, at 786 (citing, for example, Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 612 (1989)). For an in-depth discussion of DNA databases and related privacy concerns, see Yee, supra note 69, at 461.
20011
855Another concern related to the accuracy and longevity of DNA evidence is its inability to pinpoint when or how long a particular
suspect was at the scene of a crime.'35 A suspect's DNA can appear atthe scene even if he was not the perpetrator, unless, of course the DNA is collected from semen in or on the victim.'36 Even then, DNA obtained from that semen does not rule out the possibility that the alleged victim and the accused engaged in consensual sex.'
7In these instances, DNA evidence may positively identify a suspect who is, in fact, innocent."'
A final problem associated with the availability of accurate DNA
technology to solve sexual assaults and other violent crimes is the current nationwide backlog of untested DNA samples.'
39Many samples remain untested for years due to the sheer inability of state laboratories to meet the demands that the large volume of DNA evidence places on them."
°The backlog of unanalyzed CODIS samples is estimated at six years, meaning that many offenders will remain free during that period of time to victimize others.'
4' Many of these samples will also remain untested even after the applicable statutes of limitation expire, making it impossible for prosecutors to ever bring many offenders to justice.""
Because DNA can identify criminal offenders with unprecedented statistical accuracy, and because such evidence can remain in existence for indefinite periods of time, many find that it is fundamentally unfair to permit known offenders to escape justice simply because the applicable statute of limitations has expired, particularly in light of
135. See NCFDE, supra note 91, at 2. The NCFDE notes that traditional fingerprint evidence poses similar concerns. See id.
136. See Diehl, supra note 24, at 438. Diehl gives the hypothetical illustration of a situation where investigators, relying solely on blood evidence found at the scene of a rape, collect blood that coincidentally fell from a bleeding passerby prior to the commission of the crime. See id.
137. See id.
138. See id. at438-39.
139. See Asplen, supra note 73, at 146-47. The backlog consists of (1) untested samples from convicted offenders that are awaiting analysis and inclusion in DNA databases, and (2) unanalyzed crime scene evidence. See Legislative Hearing on HR.
2810, HR 3087, & HR 3375 Before the Subcomm. on Crime of the House Judiciary Comm., 106th Cong., (2000) (visited Oct. 5, 2000) <http://www.house.gov/judiciary/
ferr0323.htm> (testimony of Paul B. Ferrara, Ph.D.).
140. See Hibbert, supra note 65, at 799.
141. See Asplen, supra note 73, at 147.
142. See Chapman, supra note 1, at 19 (noting that 4,000 of New York's untested rape kits are older than five years). New York currently limits prosecutions for rape to five years. See Luo, supra note 14, at A3.
STATUTES OF LIMITATION AND DNA
processing backlogs.'
43Others find that laws limiting post-conviction testing of DNA evidence deserve similar review, since DNA can also positively exclude suspected and convicted offenders from guilt.'"
Efforts are underway to reconcile the inevitable tensions that have grown in response to the availability of a technology that, unlike those before it, is capable of positively identifying assailants years after the
crime.345C. Responses to Tensions 1. State Legislation
Individual states have discretion to establish their own statutes limiting the prosecution of crimes and may therefore extend or eliminate them as they choose.'" Several states have already responded to public pressure by extending or eliminating their statutes of limitation on sexual assault crimes.' Illinois, for example, recently increased its statute of limitation for sexual assault crimes from five years to ten.1
48Nevada
44and New Jersey' have eliminated their statutes limiting the prosecution of sex offenses, and Florida no longer limits the time for prosecuting sexual battery if the crime is reported within seventy-two hours.' Just months ago, the California Legislature adopted a novel measure, passing a law that has essentially eliminated the statute of limitation for sexual assault where DNA evidence is available, but that
143. See generally Chapman, supra note 1, at 19.
144. See generally Jennifer Longley, Legal Genes, PEOPLE MAO., May 15, 2000, at 111.
145. See Miguel Bustillo, DNA Tests Fuel Drive for Longer Rape Case Statute, L.A.
TIMES, Feb. 29, 2000, at A3 (observing that "[iln statehouses across the country, pressure has been building to scrap statute-of-limitation laws in light of DNA testing that has pointed to suspects in cases where the limits on charges had longed passed").
146. See supra text accompanying note 27.
147. See Kozlowski, supra note 9, at 6. Just this past year, California, Colorado, Connecticut, Maryland, and Minnesota each enacted legislation modifying or extending their statutory limitation periods for crimes yielding DNA evidence. See Mark Hansen,
The Great Detective, A.B.A. J., Apr. 2001, at 37, 40.
148. See Kozlowski, supra note 9, at 6.
149. See NEV. REV. STAT. ANN. § 171.083 (Michie Supp. 1999).
150. See N.J. STAT. ANN. § 2C: 1-6(a) (West Supp. 2000).
151. See FLA. STAT. ANN. § 775.15(b) (West Supp. 2001).
2001] 857
limits prosecution to one year after that evidence conclusively identifies
the perpetrator."Other states are following this trend and are likewise considering legislative measures that would extend or eliminate limitation periods for sexual assault crimes." Pennsylvania is presently seeking to extend its statute of limitation on rape," while Michigan'55 and New York"s have proposed the abolition of their limitation periods. The Michigan Senate is considering an innovative bill that, if passed, will permit prosecutors to indict unknown suspects based on DNA profile evidence.5 7 One commentator predicts that even more state legislatures
"will be tempted to adapt their laws to facilitate the use of DNA evidence" as DNA technology advances. "" However, other tactics may be available to those states retaining their statutes of limitation on sexual
assault crimes.'
592. A Unique Prosecution Tactic: "John Doe" Indictments
With little time to spare before the expiration of Wisconsin's six- year statute of limitation on sexual assault, officials in Milwaukee filed a "futuristic arrest warrant" in September 1999, charging an unknown
152. See CAL. PENAL CODE § 803(hX1) (West Supp. 2001). Interestingly, legislators made the passage of this law subject to approval of a law permitting imprisoned felons to petition for post-conviction DNA testing. See id. § 1405; A.B. 1742, 1999-2000 Reg.
Sess. (Ca. 2000), available in WESTLAW, 1999 CA A.B. 1742 (SN).
153. See Hansen, supra note 147, at 40. Arkansas has just passed a measure extending the statute of limitations on rape to 15 years in cases where prosecution is
"based upon forensic DNA testing or other tests which may become available through advances in technology." 2001 Ark. Acts 920. Other states where similar legislation is pending include Indiana, Massachusetts, and Pennsylvania. See Hansen, supra note 147, at 40.
154. See S.B. 561, 183rd General Assembly, Regular Sess. (Pa. 1999), available in WESTLAW, 1999 PA S.B. 561 (SN).
155. See S.B. 1174,90th Leg., Regular Sess. (Mich. 2000), available in WESTLAW, 1999 MI S.B. 1174 (SN). Michigan's proposal would eliminate the limitation period only in cases where available DNA evidence matches the DNA evidence of a specific individual. See id.
156. See S.B. 8212, 223rd Annual Leg. Sess. (N.Y. 2000), available in WESTLAW, 1999 NY S.B. 8212 (SN).
157. See S.B. 1309,90th Leg., Regular Sess. (Mich. 2000), available in WESTLAW, 1999 MI S.B. 1309 (SN). If passed, this measure will codify the procedure described infra, Part II.C.2.
158. Diehl, supra note 24, at 432.
159. See Editorial, DNA Ramifications, INTELLIGENCER J., Mar. 28, 2000, at Al0.
